07 Mar 2019

Some private conduct is now "corrupt conduct" under Queensland's Crime and Corruption Act

By Barry Dunphy, Eleanor Dickens and Sam Weston

From 1 March 2019, the Queensland Crime and Corruption Act will now capture the conduct of private citizens in certain instances.

Back in 2017, we flagged that the Queensland Parliament was considering broadening the definition of corrupt conduct under the Crime and Corruption Act.

These changes arose from recommendations from both the Crime and Corruption Commission (CCC) and units of public administration (agencies) that the Government should:

  • widen the definition of corrupt conduct in the Crime and Corruption Act 2001 (CC Act) to capture additional behaviour;
  • extend the CCC's jurisdiction over conduct that, although not technically within the public sector, can corrupt its functions and damage public confidence in it; and
  • ensure agencies keep full records of decisions about allegations of corrupt conduct.

On 9 November 2018, in response to the recommendations, the Queensland Government passed the Crime and Corruption and Other Legislation Amendment Act 2018. The most significant change introduced by the Amendment Act is the new definition of corrupt conduct that came into effect on 1 March 2019.

The new definition of corrupt conduct

Section 15 of the CC Act sets out the key definition of what is “corrupt conduct”.

The amendments have removed the following concepts from the definition of corrupt conduct:

  • the "benefit or detriment test" – that is, the former requirement that a person had to be engaged in the conduct in question for the purpose of obtaining a benefit or causing a detriment; and
  • the list of example offences in the former section 15(2).

A new section 15(2) has then been added to capture particular criminal and disciplinary conduct that could impair public confidence in public administration.

Crucially, while the focus of section 15 was previously on the behaviour of public sector employees, the changes now more clearly recognise that the actions of people outside the public sector can also result in a loss of confidence in agencies, and ensure these actions will come within the CCC's jurisdiction.

The particular types of conduct covered by the new definition are:

  • collusive tendering;
  • fraudulent applications for licences, permits and other authorities;
  • dishonestly obtaining benefits from the payment or application of public funds or the disposition of state assets;
  • evading State taxes, levies, duties or fraudulently causing a loss of State revenue; and
  • fraudulently obtaining or retaining an appointment.

The section 15(2) definition is an important expansion to the definition of corrupt conduct.

New record-keeping requirements for assessment decisions

In addition to the new definition, agencies should also consider the new record-keeping requirements that were introduced by the Amendment Act in November last year.

Public officials now have a duty to notify the CCC if they reasonably suspect that a complaint involves corrupt conduct. The new section 40A of the CC Act requires public officials to keep a record of any decision not to refer alleged corrupt conduct to the CCC.

The CCC has recommended that, if an officer of an agency is assessing a complaint or allegation that they do not believe needs to be referred to the CCC, they should at a minimum:

  • accurately record how you assessed the complaint against the definition of corrupt conduct;
  • specify why the complaint did not meet the definition or threshold for notification to the CCC;
  • record the decision-maker’s name, position and endorsement of your assessment; and
  • identify and record any conflict of interest issues.

What these changes to the "corrupt conduct" definition mean for your agency

Agencies should now immediately review their existing policies, procedures and practices to ensure they properly incorporate the new definition of corrupt conduct.

Agencies will also need to develop templates for the reporting that has to occur under the new section 40A.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.